R. v. James (W.A.) et al., 2007 NSCA 19

• Judge: Cromwell, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: Tuesday February 13, 2007
• Jurisdiction: Nova Scotia
• Citations: 2007 NSCA 19;(2007), 251 N.S.R.(2d) 255 (CA)

R. v. James (W.A.) (2007), 251 N.S.R.(2d) 255 (CA);

    802 A.P.R. 255

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. FE.026

Neil William Smith and Wayne Alexander James (appellants) v. Her Majesty the Queen (respondent)

(CAC 206002; CAC 206003; 2007 NSCA 19)

Indexed As: R. v. James (W.A.) et al.

Nova Scotia Court of Appeal

Cromwell, Hamilton and Fichaud, JJ.A.

February 13, 2007.

Summary:

The accused were convicted by a jury of conspiracy to commit murder and first degree murder. The accused Smith allegedly ordered the killing and the accused James allegedly helped arrange the killing. The accused appealed and applied to admit fresh evidence to prove a miscarriage of justice as a result of the Crown's failure to make proper disclosure.

The Nova Scotia Court of Appeal dismissed the appeal. The fresh evidence was not admissible. No miscarriage of justice occurred. All grounds of appeal were without merit, with the exception of an error in admitting hearsay evidence of one out of court statement by a co-conspirator. However, the court invoked s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the error, where the verdict would necessarily have been the same had the evidence not been admitted.

Criminal Law - Topic 76

General principles - Res judicata (multiple convictions for same subject matter precluded) - General principles - The accused were convicted of conspiracy to commit murder and first degree murder - The accused submitted that the Kienapple principle precluded a conviction for both offences, as all of the elements of the conspiracy were subsumed in the first degree murder conviction - The Nova Scotia Court of Appeal held that Kienapple did not preclude a conviction for both offences - Although there was a factual nexus between the two charges, the required legal nexus was not present - There existed an "additional and distinguishing element" that went to guilt in the conspiracy conviction that was not present in the first degree murder conviction - The murder conviction was based on counselling another to kill - Counselling did not require agreement, which was the essence of a conspiracy - See paragraphs 145 to 153.

Criminal Law - Topic 1270

Murder - General principles - First degree murder - Meaning of "planned" and "deliberate" - Section 231(3) of the Criminal Code provided that a murder was "planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another" - The Nova Scotia Court of Appeal held that s. 231(3) required that "the arrangement must have been in place at the time of the murder" - See paragraph 136.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - The Nova Scotia Court of Appeal stated that "the general rule that an admission is only evidence against the party who made it is broadened in a conspiracy case if three requirements are established. If the Crown establishes beyond a reasonable doubt that the conspiracy alleged in the indictment existed and that the accused was likely a member of it, the jury is entitled to use out of court statements by other likely members of the conspiracy against the accused. This principle applies only to statements made in furtherance of the conspiracy - that is, while the conspiracy was ongoing and toward the accomplishment of the common object. ... While this is known as the 'co-conspirator's' exception to the hearsay rule, it is really a special branch of the admissions exception. To summarize, Crown evidence of an out of court statement by one accused is generally admissible as evidence of its truth only against that accused. This flows from the admissions exception to the hearsay rule. In a conspiracy case, however, this limitation is relaxed: out of court statements by persons who are proved probably to have been members of the conspiracy and which are made in furtherance of it are admissible against other probable members." - See paragraphs 194 to 195.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - [See Criminal Law - Topic 5045].

Criminal Law - Topic 4325.3

Procedure - Jury - General - Deliberations - Suspension - Two accused convicted of murder submitted that the trial judge erred in suspending jury deliberations to permit the jurors to vote in the upcoming provincial election at an advance poll, as this interfered with the continuity of deliberations and exposed the jurors to different and outside influences - The Nova Scotia Court of Appeal rejected the submission - The trial judge raised the issue of the advance poll as preferable to allowing the jurors to vote on election day, where it would be harder for sheriffs to keep the jurors from having contact with others - Counsel did not object to the jurors voting at an advance poll - They were accompanied by sheriffs and spoke to no one - Sheriffs reported that nothing untoward occurred - The court held that there was no basis in fact or law to this ground of appeal - See paragraphs 97 to 105.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused were convicted of murder partly on the basis of two Crown witnesses who were accomplices to the murder and were given immunity, paid and placed in the witness protection program in exchange for their testimony - The accused submitted that the Vetrovec warning to the jury on the dangers of accepting their testimony was inadequate - The Nova Scotia Court of Appeal dismissed the appeal - The court found that the jury charge met the following four required elements: "(1) The evidence of certain witnesses is identified as requiring special scrutiny; (2) The characteristics of the witness that bring his or her evidence into serious question are identified; (3) The jury is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it is dangerous to do so; and (4) The jury is cautioned to look for other independent evidence which tends to confirm material parts of the evidence of the witness with respect to whom the warning has been given." - See paragraphs 106 to 122.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Nova Scotia Court of Appeal held that the Crown had a duty to disclose all relevant material in the prosecution's possession or control, including evidence relevant to the credibility of an important Crown witness - Relevant material in the possession of the police was deemed to be within the Crown's control - At issue was the disclosure of relevant information in the possession of a police agency other than the investigating police force - A witness was in the witness protection program - The court held that it accepted, without deciding, that relevant information about that witness in the possession of the administrator of the program was deemed to be in the possession of the investigating police force and the Crown and subject to disclosure - However, information in the possession of another police force in Canada about the witness, of which the investigating police force and Crown had no knowledge (and was not shown to should have known about), was not in the Crown's possession - The court stated that "this would create an impossible burden. The investigating police force and the prosecutor would have to make inquiries with every police agency in the country in order to fulfill its disclosure obligations" - See paragraphs 52 to 60.

Criminal Law - Topic 4575

Procedure - Conduct of trial - Security measures - [See Criminal Law - Topic 4852].

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - [See Criminal Law - Topic 4852].

Criminal Law - Topic 4852

Appeals - Indictable offences - Grounds of appeal - Miscarriage of justice - The Nova Scotia Court of Appeal held that the possibility that a juror caught a brief glimpse of the accused charged with murder in handcuffs did not lead to a miscarriage of justice where a mistrial was not granted - Jurors were presumed to act in accordance with their oaths and follow a trial judge's instructions to render a true verdict - Given the admitted criminal activities of the accused (drug trafficking), a juror would not have been surprised that security measures were being applied to the accused - The court agreed that it was "fanciful" that a juror would disregard his or her instructions and oath on nothing more than a momentary opportunity to view the accused in handcuffs in the hall way outside of the court room - See paragraphs 84 to 91.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - An important Crown witness in a murder trial, who was admittedly involved in the murder and the drug trade and was given immunity, money and placed in the witness protection program, was the subject of a strong Vetrovec warning about treating his testimony with caution - The accused appealed his convictions and sought to introduce fresh evidence on appeal - The evidence was that while in the witness protection program, the witness defrauded his landlord and welfare authorities - The accused alleged that this evidence cast sufficient doubt on the witness' credibility that his convictions ought to be set aside - The Nova Scotia Court of Appeal dismissed the application to introduce fresh evidence on the basis that there was no reasonable possibility that the evidence would have affected the verdict - The fresh evidence related to dishonest acts which paled in comparison to the acts which the accused admitted before the jury - The evidence could not have affected the jury's impression of the witness' character or credibility - Had the jury been aware of this additional evidence affecting the witness' credibility, the verdict would necessarily have been the same - See paragraphs 61 to 83.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - The Nova Scotia Court of Appeal held that the trial judge erred in admitting the evidence of a witness that a co-conspirator told him that the accused promised him money to kill the victim and had not paid it - This evidence was inadmissible hearsay - It was not provisionally admissible under the co-conspirator's exception to the hearsay rule because it was not made in furtherance of the alleged conspiracy to murder the victim - The hearsay was also inadmissible as evidence of first degree murder by arrangement - However, the court invoked the curative provisions of s. 686(1)(b)(iii) of the Criminal Code to dismiss the accused's appeal notwithstanding the error, because the verdict would necessarily have been the same - The trial judge's instructions made it clear that this statement could not be used either on the issue of probable membership or in determining guilt on the conspiracy charge - See paragraphs 217 to 250.

Criminal Law - Topic 5208.1

Evidence and witnesses - Admissibility and relevancy - Suggestions to witness by counsel - The Nova Scotia Court of Appeal stated that "suggestions made by counsel to a witness in cross-examination are not admissible evidence of the truth of the suggestions" and it was no misdirection for a trial judge to so instruct a jury - See paragraph 124.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - The accused was convicted of first degree murder for counselling (ordering) the victim's death - The trial judge admitted hearsay evidence by the victim's wife as relevant to motive - The evidence was that the victim told his wife that two beatings inflicted on him in 1994 resulted from allegations that he had an affair with the girlfriend of the head of the Halifax chapter of the Hell's Angels and that the accused was present at the second beating - The Nova Scotia Court of Appeal held that the trial judge did not err in admitting the evidence under the principled approach - The evidence was clearly necessary (victim dead) and the evidence met the threshold reliability requirement - The court stated that, inter alia, the victim had no motive to lie to his wife and what he told her was adverse to his own interests - Further, there was no error in finding that the probative value of the evidence, as relating to a possible motive for the killing, outweighed its prejudicial effect - See paragraphs 154 to 183.

Criminal Law - Topic 5494

Evidence and witnesses - Motive or design - Admissibility - [See Criminal Law - Topic 5209].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - [See Criminal Law - Topic 4354].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See Criminal Law - Topic 5209].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - [See Criminal Law - Topic 4970].

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 52].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 52].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 52].

R. v. Bottineau (2005), 32 C.R.(6th) 70 (Ont. Sup. Ct.), refd to. [para. 52].

R. v. L.A.T. (1993), 64 O.A.C. 380; 84 C.C.C.(3d) 90 (C.A.), refd to. [para. 53].

R. v. Gagné (Y.) (1998), 131 C.C.C.(3d) 444 (Que. C.A.), leave to appeal dismissed (1999), 239 N.R. 398 (S.C.C.), refd to. [para. 53].

R. v. Gingras (1992), 120 A.R. 300; 8 W.A.C. 300; 71 C.C.C.(3d) 53 (C.A.), refd to. [para. 54].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 61].

R. v. Lawrence (D.C.) (2001), 192 N.S.R.(2d) 43; 599 A.P.R. 43 (C.A.), refd to. [para. 87].

R. v. Roy (C.) (2004), 190 O.A.C. 186 (C.A.), refd to. [para. 90].

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), leave to appeal dismissed (2005), 336 N.R. 195; 204 O.A.C. 395 (S.C.C.), refd to. [para. 108].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 111].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 121].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205, refd to. [para. 121].

R. v. Nenadic (M.) et al. (1997), 88 B.C.A.C. 81; 144 W.A.C. 81 (C.A.), leave to appeal dismissed (1997), 224 N.R. 158; 95 B.C.A.C. 240; 154 W.A.C. 240 (S.C.C.), refd to. [para. 140].

R. v. Droste, [1984] 1 S.C.R. 208; 52 N.R. 176; 3 O.A.C. 179, refd to. [para. 144].

R. v. Richardson (V.), [1994] 1 S.C.R. 155; 163 N.R. 76; 144 N.B.R.(2d) 321; 368 A.P.R. 321, refd to. [para. 144].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 145].

R. v. Provo, [1989] 2 S.C.R. 3; 97 N.R. 209; 59 Man.R.(2d) 1, refd to. [para. 145].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93, refd to. [para. 146].

R. v. Sheppe, [1980] 2 S.C.R. 22; 31 N.R. 437, refd to. [para. 148].

R. v. Grewall (A.S.) et al. (2003), 185 B.C.A.C. 247; 303 W.A.C. 247 (C.A.), refd to. [para. 148].

R. v. Hamilton (R.L.), [2005] 2 S.C.R. 432; 336 N.R. 302; 371 A.R. 201; 354 W.A.C. 201, refd to. [para. 148].

R. v. Greyeyes (E.R.), [1997] 2 S.C.R. 825; 214 N.R. 43; 152 Sask.R. 294; 140 W.A.C. 294, refd to. [para. 148].

R. v. Merz (H.J.) (1999), 127 O.A.C. 1; 140 C.C.C.(3d) 259 (C.A.), refd to. [para. 166].

R. v. Underwood (G.R.) (2002), 320 A.R. 151; 288 W.A.C. 151; 170 C.C.C.(3d) 500 (C.A.), refd to. [para. 166].

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96; 774 A.P.R. 96; 207 C.C.C.(3d) 372 (C.A.), leave to appeal dismissed (2006), 359 N.R. 392 (S.C.C.), refd to. [para. 166].

R. v. P.S.B. (2004), 222 N.S.R.(2d) 26; 701 A.P.R. 26 (C.A.), refd to. [para. 166].

R. v. Khelawon (R.) (2006), 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 170].

R. v. Wilcox (J.A.) et al. (2001), 192 N.S.R.(2d) 159; 599 A.P.R. 159; 152 C.C.C.(3d) 157 (C.A.), refd to. [para. 170].

R. v. Czibulka (L.) (2004), 190 O.A.C. 1; 189 C.C.C.(3d) 199 (C.A.), leave to appeal dismissed (2005), 344 N.R. 194; 208 O.A.C. 396 (S.C.C.), refd to. [para. 170].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 171].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 175].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 175].

R. v. Douglas and Douris, [1991] 1 S.C.R. 301; 122 N.R. 1; 47 O.A.C. 1, refd to. [para. 189].

R. v. Paradis, [1934] S.C.R. 165, refd to. [para. 189].

R. v. Ahern (1988), 165 C.L.R. 87 (Aust. H.C.), refd to. [para. 190].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1, refd to. [para. 194].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [para. 197].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 198].

R. v. Sutton (K.M.) (1999), 222 N.B.R.(2d) 78; 570 A.P.R. 78; 140 C.C.C.(3d) 336 (C.A.), affd. [2000] 2 S.C.R. 595; 262 N.R. 384; 230 N.B.R.(2d) 205; 593 A.P.R. 205, refd to. [para. 199].

R. v. Pilarinos (D.) et al., [2002] B.C.T.C. 855 (S.C.), refd to. [para. 225].

R. v. Baron and Wertman (1976), 31 C.C.C.(2d) 525 (Ont. C.A.), refd to. [para. 227].

R. v. Jamieson (1989), 90 N.S.R.(2d) 164; 230 A.P.R. 164 (C.A.), refd to. [para. 228].

R. v. Duff (G.A.) (1994), 95 Man.R.(2d) 167; 70 W.A.C. 167; 90 C.C.C.(3d) 460 (C.A.), refd to. [para. 228].

R. v. Viandante (F.) and Lebras (A.J.) (1995), 102 Man.R.(2d) 126; 93 W.A.C. 126 (C.A.), leave to appeal dismissed (1996), 206 N.R. 154; 115 Man.R.(2d) 160; 139 W.A.C. 160 (S.C.C.), refd to. [para. 228].

R. v. Loewen (J.K.) (1999), 134 Man.R.(2d) 234; 193 W.A.C. 234 (C.A.), refd to. [para. 228].

R. v. Graham (M.), [2005] O.A.C. Uned. 150 (C.A.), refd to. [para. 228].

R. v. Wiggins, [1986] B.C.J. No. 2477 (S.C.), refd to. [para. 228].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 230].

R. v. Buell (K.D.) (1996), 146 Nfld. & P.E.I.R. 173; 456 A.P.R. 173 (P.E.I.C.A.), refd to. [para. 233].

R. v. Falahatchian (M.) and Momeni (S.V.) (1995), 83 O.A.C. 55; 99 C.C.C.(3d) 420 (C.A.), refd to. [para. 233].

R. v. Bussey (S.) et al. (1999), 176 Nfld. & P.E.I.R. 181; 540 A.P.R. 181 (Nfld. C.A.), refd to. [para. 233].

R. v. Fraser (G.) - see R. v. Bussey (S.) et al.

R. v. Pilarinos (D.) et al., [2002] B.C.T.C. 1267; 167 C.C.C.(3d) 97 (S.C.), refd to. [para. 233].

R. v. Clark (G.D.) - see R. v. Pilarinos (D.) et al.

R. v. Neves (J.A.) (2000), 149 Man.R.(2d) 1 (Q.B.), affd. (2005), 192 Man.R.(2d) 223; 340 W.A.C. 223 (C.A.), refd to. [para. 235].

R. v. Collins (L.) et al. (1999), 172 Nfld. & P.E.I.R. 1; 528 A.P.R. 1; 133 C.C.C.(3d) 8 (Nfld. C.A.), refd to. [para. 237].

R. v. Arradi (Z.), [2003] 1 S.C.R. 280; 302 N.R. 367, refd to. [para. 247].

R. v. Armstrong (R.) (2003), 176 O.A.C. 319; 179 C.C.C.(3d) 37 (C.A.), leave to appeal dismissed (2004), 329 N.R. 390; 195 O.A.C. 397 (S.C.C.), refd to. [para. 247].

Authors and Works Noticed:

Cross, Rupert, and Tapper, Colin, Evidence (10th Ed. 2004), pp. 610, 611 [para. 231].

Frankel, S. David, Developments in the Law Relating to the Co-conspirator Exception to the Hearsay Rule (1983), 31 C.R.(3d) 107, p. 109 [para. 228].

Goode, Matthew R., Criminal Conspiracy in Canada (1975), p. 250 [para. 228].

Schiff, Stanley A., Evidence in the Litigation Process (4th Ed. 1993), vol. 1, pp. 296, 297 [para. 172]; 491, 492 [para. 190].

Smith, J.C., Proving Conspiracy, [1996] Crim. L.R. 386, pp. 387, 388 [para. 190].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 303 [para. 194]; paras. 6.225 to 6.242, 6.243 [para. 199]; 6.97 ff. [para. 178]; 16.101 [para. 124].

Counsel:

Donald Murray, Q.C., for the appellant, Wayne A. James;

Jim O'Neil, for the appellant, Neil Smith;

James A. Gumpert, Q.C., Peter Craig and Jennifer A. MacLellan, for the respondent.

These appeals were heard on September 21-22, 2006, at Halifax, N.S., before Cromwell, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On February 13, 2007, Cromwell, J.A., delivered the following judgment for the Court of Appeal.